Blair vs. The State of Georgia. tive of principle, but I yield to authority and do not purpose to follow my own head against the adjudications of wiser judges. The test laid down by most of the books is, that if the evidence requisite to support the second indictment would have produced a conviction on the first, the bar attaches; but if the second indictment requires evidence which would not have supported the first, the bar does not attach. Try the rule by different cases we have had. A man was indicted for stealing a cow of a certain description, and acquitted. He was indicted again for stealing the same cow, by another description, and it was held that the second indictment was barred by the result of the first. Buhler vs. The State, 64 Ga. 504. There the evidence required to support the second indictment would not have produced a conviction on the first. Again, in another case, (Goode vs. The State, 70 Ga. 752,) a house from which a larceny was committed and the goods stolen were described as the house and goods of a certain person; and that indictment resulted in an acquittal. A second indictment was brought, alleging a different ownership of the house and goods, and laying the offence on a different day. The evidence requisite to support the second indictment would not have supported the first; and yet it was held that acquittal on the first was a bar to the second. And see Knight vs. The State, 73 Ga. 804. The books are in some confusion about the application of the principle which most of them seem to recognize. But almost the identical case now before us I find decided. A statute of South Carolina prohibited trading with a slave; after a conviction for trading with a slave, an indictment was maintained under another statute for selling without a license from the public authority; and the transaction under both indictments was the same. State vs. Sonnerkalb, 2 Nott & McC. 280; State vs. Glasgow, Dudley, Ford rs. Lukens. 40. So that while confusion exists, the identical case, in principle, that is now before us has been ruled more than once the way the court has just announced; and I acquiesce on authority for the present, but without changing in the least my opinion on the principle. As I understand Roberts vs. The State, 14 Ga. 8, the court preferred the same-transaction test to the same-evidence test. On page 12, it said, "To avoid confusion on this subject, we adopt the rule as it is otherwise more generally and perhaps more accurately expressed, viz. that the plea of autre fois acquit or convict is sufficient, whenever the proof shows the second case to be the same transaction with the first." And see Holt vs. The State, 38 Ga. 187. FORD US. LUKENS. A grantee of water privileges who by express stipulation is without right to dam up the water so as in any manner to overflow or injure a certain spring on the premises, cannot obstruct or affect it injuriously by erecting a dam or embankment across its outlet, and compressing the water in its passage through the same within a narrow and confined channel, although at the date of the grant the spring was not flowing naturally, but had artificial works across the outlet, which retarded the flow. The owner not having covenanted to keep his spring in an artificial condition, could let it revert to its natural condition without subjecting it to be overflowed or otherwise injured by dams or obstructions thereafter erected. That he had obstructed it himself was no license to another to do it. December 10, 1888. Water and water-courses. fore Judge FAIN. Contracts. Torts. Be- Whitfield superior court. 81 633 87 544 term, 1888. Reported in the decision. W. K. MOORE, for plaintiff in error. Ford vs. Lukens. MCCUTCHEN & SHUMATE,, contra. BLECKLEY, Chief Justice. Mrs. Lukens, the plaintiff below, derives her interest in the premises under Rowley. By a written contract between Rowley and Ford, made in July, 1883, Ford had the right to construct and maintain upon the premises one or more fish-ponds, and for that purpose to ditch, drain, etc., build dams, make embankments, stop or dam up the water, direct and change the course thereof as far as necessary, "but he shall not have the right to dam up the water so as in any wise to overflow or injure the main spring, which is the one used now by the said Rowley." The grant by Rowley was not a gratuitous license, but his compensation was to be onethird of the fish taken from the ponds, or he, his heirs and assigns were to have and own one-third of the ponds and all advantages derived therefrom. It seems that although Ford constructed five ponds before Mrs. Lukens acquired her rights in the property, he did not consider that these completed his system or exhausted the grant, but that he could go on and construct another. Accordingly, in 1886, without the consent and over the objection of Mrs. Lukens (or of her husband as representing her), he threw an embankment several feet thick across the spring branch close up to the spring, and through it made an escape for the water into his new fish-pond below by means of a wooden pipe or tube, nine by twelve inches, thereby compressing into that volume a current which had previously spread out some sixteen feet wide. Whether the effect of this was to raise the water in the spring higher than it was when the contract of 1883 was made, is not quite certain, but that it did cause mud to accumulate over the bottom of the spring and the water to be less clear and free from Ford vs. Lukens. impurity there is no doubt. Moreover, the spring was injured by the new dam both in beauty and accessibility. The spring is a large one, discharging daily more than 1,000,000 gallons of water, the natural outlet being about sixteen feet wide. For many years it has been walled up on three sides, and at the date of the contract there was also a wall extending across the outlet, constructed of open brick work so as to admit of a free escape or discharge of the water. Before the dam now complained of was erected, this brick work had wholly or partially fallen down, and some, if not all of the material had been removed from the channel The suit was by Mrs. Lukens against Ford for constructing the embankment so near the spring, forcing the water to pass through the covered chute or tube, thus raising and ponding the water in the spring, injuring the water by forcing it to stand without running off in its natural way, marring the beauty of the spring, rendering it less accessible, etc. The jury found for the plaintiff twenty dollars damages, and the case comes here by exceptions to the charge of the court, and to its refusal to charge as requested. The contention was and is, that the jury ought to construe the contract between Rowley and Ford and determine what the parties meant by the stipulation against overflowing or injuring the spring; or if not, that the court should construe it to mean that the condition of the spring at the date of the contract was alone to be regarded. On the contrary, the court held and charged the jury that the words of the contract embraced the spring in its natural state, as it would flow without any artificial obstruction of any kind, and not as it was and flowed at the time of the contract and before. We think both states are covered by the contract; that is, the spring was not to be injured as it then was Ford rs. Lukens. or it might become by reverting to its natural state. There was no covenant by the owner to keep it in any artificial condition, and without some express contract to that effect, the right to have and enjoy it in its natural condition would not be parted with or surrendered. Moreover, were the construction contended for the true one, the evidence would still have entitled the plaintiff to recover. To injure the spring in any way by means of damming water for the fish-ponds, though the height of water in the spring might not be raised, would violate the stipulation. Even to interfere by a dam with the accessibility of the spring would be injurious and therefore actionable. But to return to the question made, the spring was not to be injured at all by the use of the grant, whether it remained in its then condition or not. In whatever right and proper condition the grantee of the water privileges afterwards found it, he was to leave it. If he could erect dams from time to time, he had to adapt each new one to the spring as it then might be, if it was in its natural state or any state not worse for him than its natural. Had he desired to have it remain in a stationary condition, or be subject to injury if that condition was not maintained, he should have brought these terms into the contract and made them matter of covenant. But there was no contract whatever respecting how the spring was to be kept; that was left to implication, and surely the implication is broad enough if it restricts the owner of the spring to keeping in its natural state, or any state not less favorable to the other contracting party. When nature is made the standard in a scale of implied rights, there is not much danger of injustice to either party. The case of Carroll vs. Cockey, 3 H. & Johns. 282, cited in Ang. on Water-Courses, $276, deals with a contract in which the flow of water was the direct subject of the |